The Politics of a Strange Right: Consultation, Mining and Indigenous Mobilization in Latin America

Abstract

This paper analyzes the right to consultation, a right guaranteed to indigenous peoples by international law that has taken on an unexpected significance in Latin American politics. Drawing on three case studies, two in Peru and one in Guatemala, I argue that international law and human rights have constituted powerful forces in the recent politics of indigenous mobilization, but that their principal importance derives not from a straightforward application of human rights law in a court, but from their ability to legitimate certain political activities and discourses. I further argue that the cultural force of international law in this case lies less in a transnational institutional tendency to promote changes in behavior and outlook, and more in the ability of civil society actors to use legal principles in their own creative, entrepreneurial, and sometimes surprising ways.

The right to consultation is guaranteed in Convention 169 of the International Labor Organization, the main international law on indigenous rights. ILO 169 protects the right of indigenous communities in ratifying states to be “consulted” by their government in the event of a proposed development project that would affect the communities’ traditional territories or natural resources. The treaty does not specify what a consultation should entail, merely mentioning that there must be one, and the language was originally considered to be weak and disappointing, especially compared to the standard of “consent” that some activists had hoped to enshrined. Despite its origins, however, consultation has grown to be a major concept in indigenous mobilization in Latin America (the principal region to attract ratifications). While to date no state has ever carried out a consultation, as required by the law, dozens of communities in the region, particularly in Guatemala, but also in Peru and other countries, have staged their own “consultations,” or community referenda, in effect consulting themselves. While ILO 169 does not, in a technical sense, offer legal backing to these sorts of activities, community members and their allies nonetheless regularly cite the Convention and the right to consultation as justification for the events. Through such consultations, communities around the region have expressed their opposition (consultation rarely arises when there is not opposition to a project) to mines, dams, and other related projects.

I examine the dynamics of consultation in three cases of controversial mines and the neighboring communities, and conclude that international law and human rights have played an important role in their symbolic capacity, rather than in their capacity to achieve enforcement.